Overcharging (law)
Encyclopedia
Overcharging, in law, refers to a prosecutor
ial practice that involves "tacking on" additional charges that the prosecutor knows he cannot prove. It is used to put the prosecutor in a better plea bargaining position. The term has been defined in different ways. Alschuler writes that "to prosecutors, overcharging is accusing the defendant of a crime of which he is clearly innocent to induce a plea to the 'proper' crime. Defense counsel identify two types of overcharging. 'Horizontal' overcharging is the unreasonable multiplying of accusations against a single defendant. He may be either charged with a separate offense for every technical criminal transaction in which he participated, or the prosecutor may fragment a single criminal transaction into numerous component offenses. 'Vertical' overcharging is charging a single offense at a higher level than the circumstances of the case seem to warrant." Vertical overcharging is deemed to be the more abusive of the two practices. In defense of overcharging, it has been argued that in order to obtain a plea bargain that results in a lower sentence than the prosecutor's original position, while still obtaining a penalty that promotes public safety, the prosecutor must select an initial charge higher than is penologically appropriate.
Although theoretically, overcharging is impermissible, courts are reluctant to dismiss charges that are supported by probable cause
. American Bar Association
guidelines discourage overcharging, but do not prohibit it. It has been said that rules aimed at combating prosecutorial vindictiveness
that force prosecutors to justify any distinct indictments brought subsequent to an initial charge raise the possibility of overcharging. It has been argued that restrictions on the current practice of plea bargaining would most likely result in a reduction in overcharging by the prosecutor.
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
ial practice that involves "tacking on" additional charges that the prosecutor knows he cannot prove. It is used to put the prosecutor in a better plea bargaining position. The term has been defined in different ways. Alschuler writes that "to prosecutors, overcharging is accusing the defendant of a crime of which he is clearly innocent to induce a plea to the 'proper' crime. Defense counsel identify two types of overcharging. 'Horizontal' overcharging is the unreasonable multiplying of accusations against a single defendant. He may be either charged with a separate offense for every technical criminal transaction in which he participated, or the prosecutor may fragment a single criminal transaction into numerous component offenses. 'Vertical' overcharging is charging a single offense at a higher level than the circumstances of the case seem to warrant." Vertical overcharging is deemed to be the more abusive of the two practices. In defense of overcharging, it has been argued that in order to obtain a plea bargain that results in a lower sentence than the prosecutor's original position, while still obtaining a penalty that promotes public safety, the prosecutor must select an initial charge higher than is penologically appropriate.
Although theoretically, overcharging is impermissible, courts are reluctant to dismiss charges that are supported by probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
. American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
guidelines discourage overcharging, but do not prohibit it. It has been said that rules aimed at combating prosecutorial vindictiveness
Prosecutorial vindictiveness
Prosecutorial vindictiveness encompasses actions taken by a prosecutor to punish a defendant for not acceding to his demands. The U.S. Supreme Court has held that the constitutional guarantee of due process protects a defendant against prosecutorial vindictiveness...
that force prosecutors to justify any distinct indictments brought subsequent to an initial charge raise the possibility of overcharging. It has been argued that restrictions on the current practice of plea bargaining would most likely result in a reduction in overcharging by the prosecutor.